Citation Nr: 0733631
Decision Date: 10/25/07 Archive Date: 11/02/07
DOCKET NO. 04-40 207 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to service connection for hypertension.
2. Entitlement to service connection for residuals of lipoma
excision, to include pain and scarring.
ATTORNEY FOR THE BOARD
T. L. Douglas, Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
January 1951 to January 1953 and from February 1953 to August
1971.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 2004 rating decision by the
Columbia, South Carolina, Regional Office (RO) of the
Department of Veterans Affairs (VA). The issues on appeal
were remanded for additional development in July 2006.
FINDINGS OF FACT
1. All relevant evidence necessary for the equitable
disposition of the issues addressed in this decision was
obtained.
2. The veteran failed to report for scheduled VA
examinations in conjunction with his claims and good cause
for his failure to report has not been shown.
3. The evidence of record does not show hypertension was
present during active service; competent evidence was not
submitted demonstrating a present diagnosis of hypertension
related to an established event, injury, or disease in
service.
4. The evidence of record does not show residual
disabilities due to lipoma excision, to include pain and
scarring, were present during active service; competent
evidence was not submitted demonstrating any present lipoma
disability related to an established event, injury, or
disease in service.
CONCLUSIONS OF LAW
1. Hypertension was not incurred in or aggravated by service
nor as a result of any established event, injury, or disease
during active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West
2002 & Supp. 2006); 38 C.F.R. § 3.303 (2007).
2. Residual disabilities due to lipoma excision, to include
pain and scarring, not incurred in or aggravated by service
nor as a result of any established event, injury, or disease
during active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West
2002 & Supp. 2006); 38 C.F.R. § 3.303 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The provisions of the Veterans Claims Assistance Act of 2000
(VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326(a), and as interpreted by the United States Court of
Appeals for Veterans Claims (hereinafter "the Court") have
been fulfilled by information provided to the veteran by
correspondence dated in April 2004 and August 2006. Those
letters notified the veteran of VA's responsibilities in
obtaining information to assist in completing his claims,
identified the veteran's duties in obtaining information and
evidence to substantiate his claims, and requested that he
send in any evidence in his possession that would support his
claims. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)),
Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v.
Principi, 18 Vet. App. 112 (2004). See also Mayfield v.
Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other
grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson
(Mayfield II), 20 Vet. App. 537 (2006).
During the pendency of this appeal, the Court in
Dingess/Hartman found that the VCAA notice requirements
applied to all elements of a claim. A notice as to these
matters was provided in August 2006. The notice requirements
pertinent to the issues addressed in this decision have been
met and all identified and authorized records relevant to
these matters have been requested or obtained. Further
attempts to obtain additional evidence would be futile. The
Board finds the available medical evidence is sufficient for
adequate determinations.
VA regulations provide that when a claimant fails to report
for a scheduled medical examination, without good cause, an
original compensation claim shall be rated based upon the
evidence of record. See 38 C.F.R. § 3.655 (2007). The Court
has held that the burden was upon VA to demonstrate that
notice was sent to the claimant's last address of record and
that the claimant lacked adequate reason or good cause for
failing to report for a scheduled examination. Hyson v.
Brown, 5 Vet. App. 262, 265 (1993); see also Connolly v.
Derwinski, 1 Vet. App. 566 (1991). The Court has also held
that VA's "duty to assist is not always a one-way street."
Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). If a veteran
wishes help, he cannot passively wait for it in those
circumstances where he may or should have information that is
essential in obtaining relevant evidence.
A review of the record shows the veteran was properly
notified and that he failed to report for scheduled VA
examinations in May 2007 and June 2007 for his service
connection claims. Therefore, these issues must be
adjudicated based upon the evidence of record. There has
been substantial compliance with all pertinent VA law and
regulations and to move forward with these claims would not
cause any prejudice to the appellant.
Law and Regulations
Service connection may be granted for a disability resulting
from personal injury suffered or disease contracted in line
of duty or for aggravation of preexisting injury suffered or
disease contracted in line of duty. 38 U.S.C.A. §§ 1110,
1131 (West 2002); 38 C.F.R. § 3.303 (2007).
In the case of a veteran who engaged in combat with the enemy
in active service with a military, naval, or air organization
of the United States during a period of war, the Secretary of
VA shall accept as sufficient proof of service-connection of
any disease or injury alleged to have been incurred in or
aggravated by such service satisfactory lay or other evidence
of service incurrence or aggravation of such injury or
disease, if consistent with the circumstances, conditions, or
hardships of such service, notwithstanding the fact that
there is no official record of such incurrence or aggravation
in such service. 38 U.S.C.A. § 1154(b) (West 2002);
38 C.F.R. § 3.304(d) (2007).
VA's General Counsel has held in a precedent opinion that
"the ordinary meaning of the phrase 'engaged in combat with
the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a
veteran participated in events constituting an actual fight
or encounter with a military foe or hostile unit or
instrumentality." The determination as to whether evidence
establishes that a veteran engaged in combat with the enemy
must be resolved on a case-by-case basis with evaluation of
all pertinent evidence and assessment of the credibility,
probative value, and relative weight of the evidence.
VAOGCPREC 12-99 (Oct. 18, 1999).
Pertinent case law also provides that 38 U.S.C.A. § 1154(b)
does not create a presumption of service connection for a
combat veteran's alleged disability, and that the veteran is
required to meet his evidentiary burden as to service
connection such as whether there is a current disability or
whether there is a nexus to service which both require
competent medical evidence. See Collette v. Brown, 82 F.3d
389, 392 (1996).
VA regulations provide that where a veteran served 90 days or
more of continuous, active military service during a period
of war or after January 1, 1947, and certain chronic
diseases, including hypertension, become manifest to a degree
of 10 percent within one year from date of termination of
service, such disease shall be presumed to have been incurred
in service even though there is no evidence of such disease
during the period of service. This presumption is rebuttable
by affirmative evidence to the contrary. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307,
3.309 (2007).
Certain disorders associated with herbicide agent exposure in
service may be presumed service connected. See 38 U.S.C.A.
§ 1116 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Veterans who
served in the Republic of Vietnam during the period beginning
on January 9, 1962, and ending on May 7, 1975, shall be
presumed to have been exposed to an herbicide agent, unless
there is affirmative evidence to establish that the veteran
was not exposed to any such agent during that service.
38 C.F.R. § 3.307(a)(6)(iii).
Under the authority granted by the Agent Orange Act of 1991
and the Veterans Education and Benefits Expansion Act of
2001, VA has determined that a presumption of service
connection based on exposure to herbicides used in the
Republic of Vietnam during the Vietnam Era is not applicable
unless a specific disease is enumerated by regulation. See
61 Fed. Reg. 41,442 (1996); 64 Fed. Reg. 59,232, 59,236-37
(1999); 68 Fed. Reg. 27,630 (2003).
The U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) has also held that when a claimed disorder is not
included as a presumptive disorder direct service connection
may nevertheless be established by evidence demonstrating
that the disease was in fact "incurred" during the service.
See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).
In addition, service connection may be granted for any
disease diagnosed after discharge, when all of the evidence,
including that pertinent to service, establishes the disease
was incurred in service. 38 C.F.R. § 3.303(d). For the
showing of chronic disease in service, there are required a
combination of manifestations sufficient to identify a
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word chronic.
Continuity of symptomatology is required only where the
condition noted during service is not, in fact, shown to be
chronic or when the diagnosis of chronicity may be
legitimately questioned. When the fact of chronicity in
service is not adequately supported, then a showing of
continuity after discharge is required to support the claim.
38 C.F.R. § 3.303(b).
In order to prevail on the issue of service connection on the
merits, there must be medical evidence of (1) a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the present disease
or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999).
The Federal Circuit has held that a veteran seeking
disability benefits must establish the existence of a
disability and a connection between service and the
disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir.
2000).
The Court has held that where the determinative issue
involves medical causation or a medical diagnosis, competent
medical evidence is required. Grottveit v. Brown, 5 Vet.
App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App.
492 (1992). The Federal Circuit has also recognized the
Board's "authority to discount the weight and probity of
evidence in light of its own inherent characteristics and its
relationship to other items of evidence." Madden v. Gober,
125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor
one medical opinion over another provided it offers an
adequate basis for doing so. See Owens v. Brown, 7 Vet. App.
429 (1995).
It is the policy of VA to administer the law under a broad
interpretation, consistent with the facts in each case with
all reasonable doubt to be resolved in favor of the claimant;
however, the reasonable doubt rule is not a means for
reconciling actual conflict or a contradiction in the
evidence. 38 C.F.R. § 3.102 (2007).
Factual Background and Analysis
In this case, service medical records show the veteran
underwent excision of a lipoma in the right scapula region in
February 1964. Reports indicate he was hospitalized for two
days and had temporarily restricted duty for one week. A
December 1970 separation examination revealed a scar to the
left shoulder.
The service medical records include numerous physical
examinations and other medical records. All of these are
negative for complaint, diagnosis, or treatment for
hypertension. Upon retirement examination in December 1970
the veteran's blood pressure was recorded as 140/84. In a
January 1971 report he noted a medical history of high or low
blood pressure, but the examiner found no indication of any
present disorder. An August 1971 retirement examination
found the veteran's heart and vascular systems were normal.
Records show the veteran served in the Republic of Vietnam
from September 1969 to September 1970 and that his principal
duty was mess steward. There are no reports, awards, or
medals indicative of combat.
VA examination in November 1971 noted an electrocardiogram
abnormality of undetermined etiology and blood pressure
findings of 150/100 and 140/90. An examination of the skin
was normal. It was also noted that the veteran complained of
recurrent low back pain since falling on ice in 1965. No
diagnosis of hypertension or residuals of a lipoma excision
were provided.
In statements in support of his claims the veteran, in
essence, asserted that he had back pain and scarring as a
result of a lipoma excision during service and claimed that
his hypertension was due to Agent Orange exposure in Vietnam.
The veteran's spouse and daughter submitted statements in
support of his claims asserting that his hypertension and
back pain were related to service.
A December 2002 VA Agent Orange examination report noted the
veteran had a 20 year history of hypertension. A diagnosis
of essential hypertension was provided. Subsequent VA
medical records include diagnoses of hypertension without
opinion as to etiology. Also of record are private treatment
records dated from 1987 with diagnoses of hypertension
without opinion as to etiology.
Based upon the evidence of record, the Board finds the
veteran's hypertension was not present during active service
and that present residual disabilities due to a lipoma
excision during service, to include pain and scarring, are
not shown. There is no evidence of hypertension having been
manifest within the post-service year and it is not a
recognized disease associated with herbicide exposure in
Vietnam. Although the veteran described having experienced
combat in Vietnam, he was unable to provide any specific
details that could be verified and is not considered to be a
combat veteran for VA compensation purposes. The veteran
also failed to report for scheduled VA examinations in
conjunction with his claims and good cause for his failure to
report has not been shown. No competent evidence was
submitted demonstrating hypertension or a present lipoma
disability are related to an established event, injury, or
disease in service including Agent Orange exposure.
While the veteran and his family members may sincerely
believe he has hypertension and has residual disabilities due
to a lipoma excision as a result of service, they are not
licensed medical practitioners and are not competent to offer
opinions on questions of medical causation or diagnosis.
Grottveit, 5 Vet. App. 91; Espiritu, 2 Vet. App. 492.
Therefore, the Board finds entitlement to service connection
is not warranted.
When all the evidence is assembled VA is then responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
the claim in which case the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274
F. 3d 1361 (Fed. Cir. 2001). The preponderance of the
evidence is against these claims.
ORDER
Entitlement to service connection for hypertension is denied.
Entitlement to service connection for residuals of lipoma
excision, to include pain and scarring, is denied.
____________________________________________
RENÉE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs